[1985] OLRB Rep. April 558

3382-84-U; 3396-84-U Brewery, Malt and Soft Drink Workers, Local 304, and Canadian Union of Brewery and General Workers 325, Applicant, v. Molson Ontario Breweries Limited, Carling O'Keefe Transport Limited, Carling O'Keefe Breweries of Canada Limited, and Harry F. Weininger, Respondents

BEFORE: Robert D. Howe, Vice-Chairman.

APPEARANCES: P. J. Cavalluzzo for Brewery, Malt and Soft Drink Workers, Local 304; Martin Levinson and G. Greco for Canadian Union of Brewery and General Workers 325;Keith Billings, Martin Addario and Larry Bertuzzi for the respondents.

DECISION OF THE BOARD; April 11, 1985

1. In a decision dated March 22, 1985 in respect of these consolidated applications for relief under section 93 of the Labour Relations Act, the Board wrote, in part, as follows:

2. Having regard to all of the evidence and the submissions of the parties, the Board, for reasons which will issue at a later date, finds that the corporate respondents' continuing lock-out of the employees represented by the respective applicants is not unlawful. Accordingly, these applications are hereby dismissed.

The Board adopted the approach of issuing the bottom line with reasons to follow, at the request of counsel, in view of the urgency of the situation, which involved a continuing lock-out of approximately 4,000 employees. The purpose of this decision is to provide the reasons for the dismissal of the applications.

2. At the March 21 hearing of these applications, the Board received 24 exhibits and heard the evidence of Greg Greco, the President of the applicant Canadian Union of Brewery and General Workers [Local] 325 (referred to in this decision as Local 325 for ease of reference); Cameron Nelson, a lawyer who is the Business Agent of the applicant Brewery, Malt and Soft Drink Workers, Local 304 (Local 304); J. W. Healy, a lawyer who was the breweries' chief spokesman in negotiations prior to 1983; and Larry Bertuzzi, a lawyer who has been the breweries' chief spokesman in collective bargaining since 1983. In making the findings of fact contained in this decision, I have considered all of that oral and documentary evidence, the submissions of the parties, my assessment of the relative credibility of the witnesses, and the inferences which may reasonably be drawn from the totality of the evidence.

3. Local 325, which is the successor of Local 325 of the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers (the Brewery Workers), holds bargaining rights for employees of the respondent Carling O'Keefe Breweries of Canada Limited (Carling) in Toronto (Rexdale). Local 304 holds bargaining rights for employees of the respondent Molson Ontario Breweries Limited (Molson) in Toronto, for employees of the respondent Carling O'Keefe Transport Limited (Transport) in Toronto, and for employees of Labatt's Ontario Breweries, Division of Labatt Brewing Company Limited (Labatt's) in Toronto.

4. Prior to December of 1984, Local 304 was a local of the Brewery Workers. On December 20, 1984, the Brewery Workers purported to place Local 304 under trusteeship and, on the following day, Local 304 purported to complete the steps which it had been taking to disaffiliate itself from the Brewery Workers. The legality of that trusteeship has been challenged by Local 304 in the Courts and before this Board. (See Diversey Wyandotte Inc., [1985] OLRB Rep. Mar. 405.) However, neither the legality of the trusteeship nor the disaffiliation is material to the disposition of the instant section 93 applications.

5. Since the mid 1950's (with the exception of the period from 1973 to 1978), the major Ontario breweries have engaged in industry bargaining with the various unions which represent their respective employees. Prior to 1971 that bargaining generally culminated in a memorandum of agreement (signed by representatives of the employers and representatives of the unions) which provided for ratification by a simple majority. Thus, if the settlement was rejected by any local or bargaining unit, it would nevertheless be binding on all parties (including that local or bargaining unit) provided that a majority of all the employees voting in the ratification vote had voted in favour of it. In the 1971 negotiations, that ratification formula was replaced by a system under which the memorandum required ratification by each bargaining unit (and employer). Thus, the employees in any of the bargaining units covered by the memorandum were given what amounted to a power to veto the settlement.

6. In 1974, a dispute between the Canadian locals of the Brewery Workers and the International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America resulted in a situation in which the breweries were able to quickly obtain three-year agreements through separate bargaining on the basis of a pattern settlement. In 1977, the breweries made an offer within the parameters established by the (federal) anti-inflation legislation which was in force at that time. Although a settlement was reached, a collective agreement was not signed due to difficulties associated with that legislation.

7. In 1978, Mr. Nelson was one of three co-spokespersons for the unions in industry bargaining with the breweries. Those negotiations culminated in a memorandum of agreement which contained the following ratification clause:

it is further understood and agreed that this memorandum is contingent upon its ratification and adoption by each and every bargaining unit that is a party hereto.

During that set of negotiations, neither Mr. Nelson nor any other union representative raised any suggestion that a ratification clause of that type could not legally be included in a memorandum of agreement. In 1980, Mr. Nelson was again one of the three co-spokespersons for the unions in industry bargaining with the breweries. Those negotiations culminated in a memorandum of agreement, dated March 25, 1980, which contained the following ratification clause (which is identical to the one which gave rise to the present proceedings):

It is further understood and agreed that this memorandum is contingent upon its ratification and adoption by each and every Ontario bargaining unit and company that is a party hereto.

As in the previous set of negotiations, that clause was included in the memorandum of settlement without any objection to its legality by Mr. Nelson or any other union representative.

8. Prior to the onset of negotiations in 1982, Mr. Nelson and Local 304's Assistant Business Agent John McNamee, who is also a lawyer, engaged in discussions with the breweries concerning the format for the forthcoming negotiations, and advised them that it was Local 304's position that anything beyond one employer, one bargaining unit was contrary to the Act. On November 15, 1982, Mr. McNamee wrote to Mr. Bertuzzi as follows:

Pursuant to our meeting last Friday, November 12. at your offices, I am writing to confirm Local 304's position with respect to the format of brewery negotiations in Ontario this year.

While we have not closed our minds to the possibility of participating in a form of industry negotiations, it is highly unlikely that we would do so unless there was a binding prior agreement or undertaking ensuring that the employers would refrain from placing a condition upon the memorandum of agreement to the effect that such memorandum of agreement was conditional upon ratification by every bargaining unit in the Province.

While we understand that it is a primary employer bargaining objective to, in your words, achieve the same settlement, at the same time with all bargaining units in the Ontario industry, we are not prepared to agree to a negotiations format which may entitle you to attempt to enforce ratification in one bargaining unit by threat of lockout of some other group for whom the memorandum is satisfactory, or conversely, deny that one bargaining unit which has ratified has a collective agreement because of the totally independent actions of some other bargaining unit. As we told you on Friday, we do not believe that such a condition can legally be placed in the memorandum if negotiations proceed on a bargaining unit by bargaining unit basis, and we are not prepared to enter into a form of negotiations which might confer legal sanction for such a condition without satisfactory assurances that your clients will not attempt to exercise any such right.

Accordingly, unless and until we receive such assurances, we do not envision any significant possibility that any of the three bargaining units represented by this Local will be engaged in any form of joint negotiations.

I must also remind you that the employers have received notices to bargain and proposals from each of our bargaining units. Thus far, we have had a reply from only one employer (Labatts) with respect to commencing negotiations, and even the meeting scheduled for that Company was cancelled by the employer.

Given the present situation, therefore, and while I am loath to take a provocative position at the commencement of negotiations, I feel constrained to remind you of the duties imposed upon your clients under s. 15 of the Labour Relations Act, and to insist that agreeable dates for negotiations be set for all three plants, on an individual basis, immediately.

That letter generated the following response from Mr. Bertuzzi on November 18, 1982:

This letter is further to your letter of November 15, 1982 as well as pursuant to our meeting of November 12th held in connection with your notices to bargain for the renewal of existing collective labour agreements negotiated on an Ontario industry basis.

We are pleased to note that at our November 12th meeting the parties agreed on the desirability of negotiating on a joint industry basis a mutually acceptable settlement for Ontario. we do not, however, share many of the views you expressed at our meeting and in your subsequent letter about conditions in the ultimate memorandum of agreement.

For the same reasons that the same parties mutually agreed to such conditions last Ontario negotiations, we wish to reiterate that we intend to vigorously pursue our objective of achieving the same settlement in Ontario at the same time.

The attainment of such a negotiated settlement obviously means agreement by all parties to its contents, we do not believe it appropriate at this time for you to raise preconditions as to the ultimate contents of such a settlement. As you know we are prepared to negotiate in good faith any differences between all of the parties with a view of concluding a mutually agreeable settlement. Ultimately each local union representative together with each company representative will have to voluntarily decide on the acceptability of what is being proposed for the renewal of the subject collective agreements. Ultimately also, the local unions as well as the companies will have to decide on the most effective manner for their respective ratification procedures.

In our view none of the above attempt(s) to enforce ratification in one bargaining unit as you suggest in your letter. Further, as we pointed out to you at our meeting, the right to strike and to lock out accrues to the parties under the laws of Ontario. Each party to collective bargaining, whether negotiating jointly or not, is entitled to the legal use of such rights. Obviously, based on our successful last negotiations in Ontario, we have good reason to believe that using the same format will lead to the same desired results.

We also agree with your stated desire to proceed expeditiously with Ontario negotiations. Moreover, it is still our objective to proceed on the same basis as last time, we are prepared to schedule company meetings to commence collective bargaining as soon as is respectively mutually agreeable. Please communicate with the undersigned as to your availability.

As in 1980 we will be proposing that the parties then proceed to a joint table for Ontario Industry negotiations with a view to arriving at a mutually acceptable Ontario settlement.

In the meantime we have also agreed to have a meeting with Mr. Plenderleith and senior representatives of the Ontario Unions to discuss the conduct of Ontario industry negotiations.

Mr. MeNamee in turn responded with the following letter dated November 22, 1982 to Mr. Bertuzzi:

We are in receipt of your letter of November 18, 1982, with respect to brewery negotiations.

At the outset, I should advise you that the letter contains some fundamental misconceptions:

I) You should be well aware that the 'parties' did not agree on the desirability of negotiating on a joint industry basis a mutually acceptable settlement for Ontario. Cameron and I did express the view that there were desirable aspects to the industry negotiations format, but we also said that we believed that the disadvantages of that format, and in particular the spectre of an all or nothing settlement, overshadowed the advantages.

2. We have raised no pre-conditions to negotiations. If your clients had not raised a demand for industry negotiations as a condition, at least at some point, of negotiations, we would have had no concerns. Since that demand has been raised, and in an attempt to partially accommodate it, we have merely notified you as the [sic] circumstances under which we might be prepared to agree to your position.

I might also point out that the second full paragraph on page 2 of your letter succintly [sic] encapsulates our real difficulty with your industry negotiations position. You are quite correct that the right to strike or lockout can accrue to either party to a set of negotiations whether those negotiations are conducted jointly or individually, but in my opinion there is a significant difference in the term parties between joint and individual negotiations.

In the case of joint negotiations, there are probably only two parties to the entire set of negotiations, ie. 1) all three breweries (and possibly Brewers Warehousing) as represented by your firm, and 2) each and every bargaining unit of employees of those employers who agrees to participate or who does participate to a significant degree in the joint negotiations. Under those circumstances, it is a by no means unreasonable interpretation of the duty to bargain in good faith to expect that one side or the other might legally insist upon on overall ratification of the final memorandum instead of a piecemeal ratification.

If, on the other hand, the negotiations proceed on a bargaining unit by bargaining unit basis, it is my opinion that neither party to each individual set of negotiations can place a condition on the memorandum of agreement which is beyond the power of either of them to remove. For example, if Labatt's were to reach a memorandum of agreement with the negotiating committee representing its bargaining unit employees in the Metro Toronto plant, it would be as much beyond Labatt's authority to insist that there could be no collective agreement with those employees until some other group of employees had ratified their memorandum of agreement as it would if Labatt's insisted that the Union could not ratify the agreement unless and until the Russians chose to withdraw from Afganistan Isici. In neither case would the employer be complying with the duty to make every reasonable effort to make a collective agreement.

If, however, you meant to imply in paragraph 2 on page 2 of your letter that an individual employer could attempt to do indirectly what it cannot do directly, and itself refuse to ratify an agreement which it had negotiated on an individual basis because some other bargaining unit of employees engaged in separate negotiations had declined to ratify their memorandum, I must again take issue with you. It is my position that such action would also be illegal and that any attempt to lock-out on that account would be contrary to ss. 15 and 93 and would subject the offending employer to heavy damages.

If you disagree with me on that point, as you are of course entitled to do, I cannot see that it causes any of the subject companies any prejudice to their position merely to undertake that they will not seek an overall ratification provision in the memorandum of agreement, but rather will agree that each bargaining unit or Local Union may, as far as the employers are concerned and subject to the law, select its own mode of ratification. After all, if an employer is, as you seem to suggest, free to lock Isici as a result of the actions of a totally independent and unrelated bargaining unit (a position with which I do not agree) such a term of the memorandum would be unnecessary and redundant in that your clients could therefore attain the stated objective of the same settlement at the same time through other means.

Two further points by way of general comment. First, despite your clients' obvious approval of the last two sets of Ontario negotiations, which were done on an industry basis, the unions involved have not been satisfied with the format. Further, despite the fact the [sic] on both occasions the Ontario industry negotiations ended in peaceful settlements, the 1980 negotiations in Alberta (which were done on the same basis) were an absolute disgrace to any reasonable concept of good faith negotiations.

Second, and as we have repeatedly told you, we are most eager to commence bargaining, and I am pleased that your letter finally shows some indication that this lengthy and rather fruitless exchange of correspondence can finally give way to serious negotiations. I would merely say that, insofar as your letter suggests or implies that individual bargaining unit meetings can only proceed with respect to Local issues, we cannot accept that position.

We would be most pleased, however, to get negotiations underway, and I am happy to confirm the dates which I discussed with your office today.

9. Notwithstanding Mr. MeNamee's views, which were shared by Mr. Nelson, it remained the breweries' position that industry bargaining was perfectly legitimate and that it was “the only practical way to go. Accordingly, when the breweries tabled their first offer in the 1982-83 negotiations, it included a ratification clause identical to that contained in the March 25, 1980 memorandum of agreement. Although Mr. Nelson's initial reaction to the clause was that it was illegal, after caucusing with his committee, he moderated Local 304's position by indicating that although it was not illegal for the breweries to seek that clause through collective bargaining, it could not be the last issue. Mr. Bertuzzi took issue with that position and, in the bargaining which ensued, the inclusion of that clause was in fact the final issue. After the breweries had locked out all the employees in the bargaining units covered by the negotiations and negotiations had bogged down for several hours because Local 304 was unwilling to agree to the ratification clause, Mr. Nelson made it known to Mr. Bertuzzi that if Molson was willing to give him a certain seniority letter, he would agree to the inclusion of the ratification clause. The requested letter was then provided and a memorandum of agreement containing that ratification clause was signed.

10. When that memorandum of agreement was signed (on February 28, 1983), the breweries lifted the lock-out which they had earlier imposed, and their employees returned to work. The settlement was subsequently ratified by all but two of the bargaining units covered by the memorandum of agreement. Upon rejecting the settlement, the employees in those two bargaining units went on strike. The breweries permitted the other employees to continue working without a contract. Although the breweries threatened to reimpose an industry-wide lock-out, they did not do so because employees in one of the two bargaining units returned to work two days later (after revoting on the settlement), and employees in the other bargaining unit also revoted and returned to work three days after that.

11. The 1984-85 negotiations which led to the present applications presented a number of difficult problems for the parties. Provisions to minimize the effect of technological change on employees were a high priority for the unions, and in particular for Local 304. Dissension among union representatives, and in particular between the Brewery Workers and Local 304, which was actively involved in attempting to disaffiliate itself from the Brewery Workers, made it difficult for some of the union representatives to even sit together in the same room, and increased their opposition to the aforementioned ratification clause which was dear to the heart of Mr. Bertuzzi who, not unreasonably, saw it as being essential to maintaining an effective format for industry bargaining.

12. The employers for whom Mr. Bertuzzi served as chief spokesman in the 1984-85 negotiations were the three corporate respondents, Labatt's, and Brewers' Warehousing Company Limited (Brewers' Warehousing). In addition to Local 325's bargaining unit and the three bargaining units represented by Local 304, negotiations were carried on in respect of the Labatt's bargaining unit in Waterloo, represented by Local 173 of the Brewery Workers; 64 the Molson bargaining unit in Barrie, represented by Local 306 of the Brewery Workers; the Labatt's bargaining unit in London, represented by National Brewery Workers Union Local No. 1 C.L.C. (Local I, which is a local chartered directly by the Canadian Labour Congress), and the employees of Brewers' Warehousing, represented by the United Brewers' Warehousing Workers Provincial Board (the Provincial Board) on behalf of various locals and branches of the United Brewers' Warehousing Workers.

13. Various local negotiations preceded the 1984-85 industry negotiations. For example, after Local 325 gave Carling notice to bargain near the end of November, those parties embarked upon local negotiations at the Carling plant in Toronto. Local 304 also gave the corporate respondents individual notices to bargain for each of its three bargaining units. At a bargaining meeting on November 24, Messrs. Nelson and Bertuzzi discussed various issues pertaining to bargaining format and ratification procedure. With respect to the latter, Mr. Nelson advised Mr. Bertuzzi that his (Mr. Nelson's) position was the same as in 1983. Mr. Bertuzzi responded that his position was also the same as in 1983. In his evidence before the Board, Mr. Bertuzzi testified that he was quite content with Mr. Nelson's position because in 1983 [he and Mr. Nelson] bargained about it and it ended up in the memorandum of agreement.

14. On December 21, 1984, Mr. Bertuzzi filed requests for the appointment of a conciliation officer in respect of the twelve bargaining units covered by the negotiations. Romain Verheyen, who was appointed as the conciliation officer in respect of all twelve bargaining units, arranged to meet with the parties at the Skyline Hotel on January 24, 1985. Since the unions were unwilling to bargain through a common spokesperson or committee, there were three bargaining tables: one for Local 304, one for Local 325, and one for the remaining unions. The Local 304 negotiating committee used a split system for bargaining. Each of its three bargaining units had its own bargaining committee for non-monetary issues. Those committees met with the employers individually to bargain about non-monetary language issues. However, the three bargaining units had a single bargaining committee (consisting of eleven persons) for monetary issues.

15. During discussions between Local 325 and Mr. Bertuzzi near the end of January, counsel for Local 325 asserted that it would be a violation of the Labour Relations Act for the employers to push the ratification clause to impasse. However, that point was not further pursued by counsel or by anyone else on behalf of Local 325 prior to the initiation of these proceedings.

16. Following the issuance of no board reports in respect of each of the bargaining units, the employers set February 24, 1985 as a lock-out deadline. That deadline was later extended to February 26. The last formal offer (referred to by the parties as Company 6) presented by the employers prior to the lock-out contained the impugned ratification clause, as did all of the employers' previous offers. Since that offer was rejected by the unions, all of the employees in the twelve bargaining units were lawfully locked out by the employers on February 26th. That lock-out was still in effect as of the date of the hearing of these applications.

17. With the onset of the lock-out, officials of the Ministry of Labour, including Mr. Verheyen and Assistant Deputy Minister Victor Pathe, embarked upon a series of exploratory talks with the parties. During those discussions, Mr. Nelson and Mr. Bertuzzi concentrated on the very difficult issue of technological change and began to make some progress near the end of the week. Late in the evening on March 8, Mr. Nelson presented a complete proposal to Mr. Bertuzzi in which he asked for monetary, pension, meal allowance, shift premium, and dental plan improvements, as well as a resolution of two outstanding issues concerning technological change. Mr. Bertuzzi then asked Mr. Nelson about a discipline clause which they had been discussing. After a five minute discussion about that matter, Mr. Bertuzzi asked Mr. Nelson, What about my ratification clause? Mr. Nelson's response was, Well I suppose if all the unions are there then I guess we'll agree to it.

18. On the basis of information obtained through those exploratory talks, Mr. Pathe put together a mediator's package, which was Company 6 with certain suggested amendments concerning wages, technological change, and the other issues which remained in dispute. That package, which included the impugned ratification clause, was presented to each of the parties on Monday March 11 for acceptance or rejection. It was rejected by the representatives of Local 304 and Local 325 because they were dissatisfied with part of its wording with respect to technological change, and because they wanted certain improvements in the dental plan and extended recall rights. It is clear from the evidence as a whole that while they would certainly have preferred to obtain a settlement which did not contain the ratification clause desired by the employers, they were prepared to agree to it if they could obtain a settlement which they felt to be worthy of recommendation to the membership.

19. By March 14, Mr. Bertuzzi and Mr. Nelson had further narrowed the issues to a point where agreement was within reach if they could resolve a Molson overtime issue and rules concerning retroactive pay. In response to a question by Mr. Bertuzzi, Mr. Nelson reiterated at that time that he was prepared to agree to the ratification clause if those other matters could be satisfactorily resolved.

20. Since it was apparent that all of the parties were moving towards acceptance of the mediator's package (with certain changes), the parties turned their attention to resolving various local issues which remained outstanding. In a series of meetings between Mr. Bertuzzi and Mr. Greco, local issues concerning Local 325 were reduced to a couple of matters. In a meeting at 2:00 a.m. on March 15 attended by Mr. Pathe, Mr. Verheyen, Mr. Bertuzzi, Mr. Greco, Mr. McNamee, and various other representatives, Mr. Greco advised Mr. Bertuzzi that Local 325 would be willing to agree to the mediator's package, including the ratification clause, if Mr. Bertuzzi would restore a certain letter of understanding and make a change in the weekly indemnity proposal. When Mr. Bertuzzi began to suggest in very strong terms that that was too high a price to pay for a settlement, Mr. Pathe separated the parties. When they reconvened shortly after 3:00 a.m., Mr. Greco, upon being offered the two items which he had requested, said, It's a deal. He subsequently signed the Memorandum of Agreement (the Memorandum) without any comment concerning the ratification clause. When asked why he signed the Memorandum with that clause in it, Mr. Greco testified: I had it in the back of my mind that it was a violation of the Act. Therefore, I had no problem signing it. I wanted to reach an agreement as soon as possible. I wanted my members to go back to work.

21. Messrs. Nelson and McNamee signed the Memorandum on behalf of Local 304. Since they were unwilling to place their names on a page which also bore the signature of Gordon Plenderleith (on behalf of the Brewery Workers) in view of the aforementioned dispute between the Brewery Workers and Local 304, Messrs. Nelson and McNamee signed a counterpart, pursuant to the following provision of the Memorandum: This Memorandum of Agreement must be executed by all parties hereto but may be executed in several counterparts each of which so executed shall be deemed to be an original and such counterparts together shall constitute the one and the same Agreement. In his evidence before the Board, Mr. Nelson testified that although he remained opposed to the ratification clause, he accepted its inclusion in the Memorandum because the parties had arrived at a settlement which he was prepared to recommend to the membership for their acceptance. He also expressed the view that it would have been irresponsible to continue a province-wide shutdown of the industry over the sole issue of whether that ratification clause should be included in the Memorandum.

22. The Memorandum was also signed by the employers' representatives and by representatives of Local 173, Local 396, the Provincial Board, and Local 1. The first three paragraphs of the memorandum provide as follows:

THE PARTIES HERETO DO HEREBY AGREE TO THE FOLLOWING IN FULL AND COMPLETE SETTLEMENT OF ALL MATTERS OUTSTANDING BETWEEN THEM AND DO FURTHER AGREE TO FORTHWITH AND DO HEREBY UNANIMOUSLY RECOMMEND THE FOLLOWING SETTLEMENT TO THEIR RESPECTIVE PRINCIPALS FOR RATIFICATION AND ADOPTION.

IT IS FURTHER UNDERSTOOD AND AGREED THAT THIS MEMORANDUM IS CONTINGENT UPON ITS RATIFICATION AND ADOPTION BY EACH AND EVERY ONTARIO BARGAINING UNIT AND COMPANY THAT IS A PARTY HERETO.

All collective agreements between the above named parties in the Ontario Brewing Industry and which expired December 31, 1984 are hereby renewed effective from date of ratification of this Memorandum until December 31, 1987 with those appropriate additions, deletions. alterations, amendments or changes as the case may be, that are necessary to incorporate the following:

[The detailed amendments specified in the body of the Memorandum have been omitted from this decision, as have the eight appendices containing language changes in respect of specific collective agreements.]

23. The Memorandum was ratified by all but two of the bargaining units; Local 304's Labatt's (Toronto) bargaining unit rejected it by two votes (128 in favour and 130 opposed), and it was also rejected by Local l's Labatt's (London) bargaining unit by a somewhat greater margin. As of the date of the hearing, the Memorandum had not been ratified by the corporate respondents or any of the other companies which signed it. On the day after Mr. Greco notified Mr. Bertuzzi that Local 325 had ratified the Memorandum, Mr. Bertuzzi advised him that the lock-out was still on because the Memorandum had not been ratified by the two aforementioned bargaining units. When the members of Local 325's bargaining unit attempted to report to work on March 18, they were advised by Carling that the lock-out remained in effect.

24. The employers were also duly notified that the settlement had been ratified by Local 304's Transport and Molson bargaining units. Mr. Nelson advised Mr. Bertuzzi on several occasions that he was of the opinion that the employees in those two bargaining units should be permitted to return to work in view of their ratification of the Memorandum. When Mr. Bertuzzi refused to accede to that view, Mr. Nelson told him that the employers' offer ought to be put to the employees without the string attached concerning the requirement of ratification by all twelve bargaining units, but Mr. Bertuzzi and the corporate respondents declined to do so.

25. Counsel for Local 325 submitted that the Board should declare the ratification clause to be null and void, direct Caning to sign a collective agreement incorporating the terms ratified by the members of Local 325, and direct Carling to terminate its lock-out of those employees forthwith. Counsel for Local 304 made similar submissions on behalf of his client in respect of the two Local 304 bargaining units which had ratified the Memorandum as of the date of the hearing. The essence of their submissions was that although an employer is entitled to request and bargain for a ratification clause of the type contained in the Memorandum, a demand for such clause cannot legally be pursued to impasse. It was their position that such impasse occurred at the latest when, following the failure of the aforementioned two bargaining units to ratify the Memorandum, the employers refused to offer to the bargaining units which had ratified the Memorandum the terms of settlement contained in it, without the impugned ratification clause. It was also their position that the employers' refusal to do so constituted a breach of section 15 of the Act. Counsel for Local 304 also contended that the Board should find collective agreements to be in force (in respect of the two Local 304 bargaining units which ratified the Memorandum) in the terms of the Memorandum, on the basis that the employers' insistence on including the impugned ratification clause was the only matter which remained in dispute. Thus, it was his position that collective agreements came into force between those parties as a matter of law. It was also his position that the employers' continued pursuit of that clause contravened section 64 of the Act. He further submitted that the employers' failure to ratify is of no legal significance because, in his view, the only reason they had not ratified was their continued insistence on the ratification clause.

26. Counsel for the respondents submitted that the lock-out was not unlawful because it was timely under the Act. In this regard, he noted that none of the corporate respondents had ratified the Memorandum. He also submitted that the section l(l)(k) definition of lock-out expressly contemplates employer action of the type in question in the present proceedings, as it defines that term to include:

the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, with a view to compel or induce his employees, or to aid another employer to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees

[Emphasis added.]

27. Counsel referred the Board to a number of cases in support of their respective positions. However, few of those cases are of assistance in deciding the instant case as they are either not directly on point, or inapplicable since they pertain to bargaining under a statutory framework different from that which is in force in Ontario.

28. As contended by applicants' counsel, with the exception of the construction industry, the concept of wide area or multi-party bargaining is based on voluntarism in Ontario: see, for example, Burns Meat Ltd., [1984] OLRB Rep. Aug. 1049. In that case, the Board held that it was inconsistent with the scheme of the Labour Relations Act and unlawful for a union to take to impasse the bargaining objective of a single nation-wide set of negotiations and a single national collective agreement. (See also Rolph-Clark-Stone Packaging, [1980] OLRB Rep. Jan. 93, and Bruce Henderson, [1977] OLRB Rep. Aug. 480.) Thus, while an employer can lawfully seek to engage in industry bargaining by allying itself with other employers with a view to presenting a common front in respect of negotiations with unions which hold bargaining rights for their employees, with the aforementioned exception of the construction industry (and subject to the requirements of section 15 of the Act) each union which holds such bargaining rights can generally insist that collective bargaining take place in respect of each individual bargaining unit for which it holds bargaining rights. (Such union cannot, of course, dictate who will represent the employer for purposes of negotiations. Thus, an employer is free to use the spokesperson(s) of its choice, or to bargain through an employers' organization, as permitted by section 51 of the Act.) However, it is open to a union to engage in broader-based bargaining as, for example, Local 304 did by structuring a single committee to bargain with the corporate respondents in respect of monetary matters. Similarly, it is open to unions such as the applicants to begin negotiations on a (more or less) separate basis, but to gradually transform those negotiations into something more akin to industry negotiations by, for example, agreeing to a ratification clause which requires a memorandum of agreement to be ratified by each of a number of bargaining units, as the applicants did in the present case (and in the past three sets of negotiations). While such a clause serves a legitimate labour relations purpose in the context of industry bargaining, it also presents the risk, which materialized in the present case, that the settlement will be vetoed by one or more bargaining units failing to ratify it. It is unnecessary to decide in the present case whether a union which has signed a memorandum containing such a clause can legally insist upon returning to negotiating on an individual bargaining unit basis as soon as such failure to ratify occurs. For the purposes of this decision, I am prepared to assume, without deciding, that a union can lawfully do so. It does not follow, however, that section 15 of the Act requires the employer in such circumstances to table in respect of each individual bargaining unit exactly the same offer which was included in the general memorandum of agreement. As is evident in the present case, employers may well be willing to make concessions in collective bargaining in order to obtain a ratification clause of the type described above, which was accurately described by Mr. Bertuzzi as being what makes industry bargaining tick. If an employer is not to have the benefit or protection of such clause, then he may well desire, and be lawfully entitled to revise his bargaining proposals and refuse to offer (or ratify), in the context of an individual bargaining unit, an offer which he would be willing to make or ratify in the context of industry bargaining. The fact that the employers were willing to pay a price to obtain such a clause also demonstrates the fundamental unfairness of the position which the applicants have asserted before the Board in the present case. On the basis of their preparedness to sign a memorandum of agreement containing the aforementioned ratification clause, the applicants have obtained a better offer from the employers than they would likely have been able to obtain on an individual bargaining unit basis. Now that the risk inherent in such agreement has materialized, they seek to have this Board strike down that clause and impose upon the employers a memorandum of agreement which does not contain such a clause. Thus, the applicants are in essence requesting the Board to assist them in reneging on an agreement which they entered into with full knowledge of its possible consequences.

29. As contended by counsel for Local 304, the Board has held in a number of cases that employer insistence upon employee ratification of collective agreement proposals may constitute a contravention of section 15 of the Act (as well as section 64): see, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138; Treco Machine & Tool Limited, [1982] OLRB Rep. Dec. 1954; Fotomat Canada Limited, [1981] OLRB Rep. Feb. 145; and Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337. However, those cases are readily distinguishable from the present case as they all involve situations in which an employer was attempting to avoid entering into a collective agreement by insisting upon a ratification vote by employees even though the union which held bargaining rights for those employees was prepared to sign a collective agreement without conducting a ratification vote. In the present case, there is no suggestion that the corporate respondents sought the inclusion of the impugned ratification clause in order to avoid having to enter into a collective agreement; to the contrary, the corporate respondents wished to have such a clause included to ensure that the collective agreements which they desired to enter into would be entered into simultaneously with all twelve bargaining units, in order to eliminate wages and other major conditions of employment as a competitive factor amongst them, and in order to ensure that insofar as possible their respective competitive positions in the marketplace would be maintained during the imposition of any economic sanctions necessary to obtain acceptable collective agreements.

30. In summary, the Board finds that the aforementioned ratification votes did not result in any collective agreement being entered into by any of the parties to these proceedings because the Memorandum, which was lawfully entered into by the parties, was not ratified in accordance with its terms. The Board further finds that in the circumstances of this case, the corporate respondents were not legally required to offer to enter into collective agreements with the applicants on an individual bargaining unit basis without any changes in terms apart from the deletion of the impugned ratification clause.

31. For the foregoing reasons the Board hereby confirms its decision dated March 22, 1985 by which it dismissed these consolidated applications.